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House Bill 2126 History
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ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2126
(By Mr. Speaker, Mr. Chambers, and Delegates
Phillips, Williams, Richards, Douglas and Vest)
AN ACT to amend and reenact sections two and six, article nine-a,
chapter six of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, all relating to open
governmental proceedings; defining governing bodies of the
Legislature; clarifying the powers of circuit courts to
enforce the provisions of the article or to annul decisions
of a governing body; expanding the time in which a civil
action may be commenced respecting actions taken or
decisions made by governing bodies; authorizing awards for
attorney fees and expenses; and providing limited civil
liability for compensatory and punitive damages.
Be it enacted by the Legislature of West Virginia:
That sections two and six, article nine-a, chapter six of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 9A. OPEN GOVERNMENTAL PROCEEDINGS.
§6-9A-2. Definitions.
As used in this article:
(1) "Decision" means any determination, action, vote or
final disposition of a motion, proposal, resolution, order,ordinance or measure on which a vote of the governing body is
required at any meeting at which a quorum is present;
(2) "Executive session" means any meeting or part of a
meeting of a governing body which is closed to the public;
(3) "Governing body" means the members of any public body
having the authority to make decisions for or recommendations to
a public body on policy or administration, the membership of
which governing body consists of two or more members; for the
purposes of this article, a governing body of the Legislature
shall be any standing, select or special committee as determined
by the rules of the respective houses thereof;
(4) "Meeting" means the convening of a governing body of a
public body for which a quorum is required in order to make a
decision or to deliberate toward a decision on any matter, but
such term does not include (a) any meeting for the purpose of
making an adjudicatory decision in any quasi-judicial,
administrative or court of claims proceeding, (b) any on-site
inspection of any project or program, or (c) any political party
caucus;
(5) "Political subdivision" means any county, county board
of education or municipality in or any other political
subdivision of this state;
(6) "Public body" means any executive, legislative or
administrative body or agency of this state or any political
subdivision, or any commission, board, council, bureau, committee
or subcommittee or any other agency of any of the foregoing, and
such term shall not be construed to include the judicial branch
of government, state or local; and
(7) "Quorum" means, unless otherwise defined by applicable
law, a simple majority of the constituent membership of a
governing body.
§6-9A-6. Enforcement by injunctions; actions in violation of
article voidable; voidability of bond issues.
The circuit court in the county where the public body
regularly meets shall have jurisdiction to enforce this article
upon civil action commenced by any citizen of this state within
one hundred twenty days after the action complained of was taken
or the decision complained of was made. Where such action seeks
injunctive relief, no bond shall be required unless the petition
appears to be without merit or made with the sole intent of
harassing or delaying or avoiding return by the governing body.
The court is empowered to compel compliance or enjoin
non-compliance with the provisions of this article and to annul
a decision made in violation thereof. An injunction may also
order that subsequent actions be taken or decisions be made in
conformity with the provisions of this article:
Provided,
That
no bond issue that has been passed or approved by any governing
body in this state may be annulled under this section if notice
of the meeting at which such bond issue was finally considered
was given at least ten days prior to such meeting by a Class I
legal advertisement published in accordance with the provisions
of article three, chapter fifty-nine of this code in a qualified
newspaper having a general circulation in the geographic area
represented by that governing body.
Any order which compels compliance or enjoins non-compliance
with the provisions of this article, or which annuls a decisionmade in violation of this article shall include findings of fact
and conclusions of law and shall be recorded in the minutes of
the governing body.
Upon entry of any such order, the court may, where the court
finds that the governing body intentionally violated the
provisions of this article, order such governing body to pay the
complaining person's necessary attorney fees and expenses. Where
the court, upon denying the relief sought by the complaining
person in the action, finds that the action was frivolous or
commenced with the primary intent of harrassing the governing
body or any member thereof or, in the absence of good faith, of
delaying any meetings or decisions of the governing body, the
court may require the complaining person to pay the governing
body's necessary attorney fees and expenses.
Any person who intentionally violates the provisions of this
article shall be liable in such action for compensatory and
punitive damages not to exceed a total of five hundred dollars.